Law Commons^™

Dynamic Expansion, Nicole Huberfeld

Faculty Scholarship

Nearly one in four Americans will have medical care and costs covered by the Medicaid program when it has been expanded pursuant to the Patient Protection and Affordable Care Act (the ACA). National media outlets have been reporting that only about half of the states are participating in the Medicaid expansion; if the reports were true, millions of Americans would be left without insurance coverage, and many of the nation’s medically fragile citizens would not have access to consistent healthcare. Contrary to these reports, most states will participate in the Medicaid expansion in the near future. This claim is not …

Finding A Positive Right To Healthcare, Nicole Huberfeld

Law Faculty Popular Media

In this blog post, Professor Nicole Huberfeld provides a review of Edward Rubin's article The Affordable Care Act, The Constitutional Meaning of Statutes, and the Emerging Doctrine of Positive Constitutional Rights, 53 Wm. & Mary L. Rev. 1639 (2012).

Nonprofit Organizations, For-Profit Corporations, And The Hhs Mandate: Why The Mandate Does Not Satisfy Rfra's Requirements, Jonathan T. Tan

Law Student Publications

In 2012, the federal government spawned an enormously divisive issue when it promulgated a regulation that requires certain employers to provide contraception coverage to their employees without cost-sharing. The mandate's supporters see it as an important step in expanding access to vital healthcare for women, whereas its detractors see it as an attempt by the government to force them into violating their deeply held religious beliefs. In a clash between values, the mandate favors access to contraception over the concerns of religious groups....Section II provides background information on the mandate and the convoluted process by which the Departments of Health …

With Liberty And Access For Some: The Aca's Disconnect For Women's Health, Nicole Huberfeld

Law Faculty Scholarly Articles

This Article will scrutinize the separation of abortion from other aspects of women's health through the vehicle of the Patient Protection and Affordable Care Act (ACA). Part I will examine briefly why the fragmented nature of American healthcare has facilitated the separation of abortion from women's health, despite the fact that abortion is a medically necessary procedure for many women. To that end, this Part will explore the disjointed history of access to medicine juxtaposed against the strangely non-woman-centric nature of the fundamental rights at play in reproductive health. Part II will provide an overview of the ACA to explain …

Enough About The Constitution: How States Can Regulate Health Insurance Under The Aca, Brendan S. Maher, Radha A. Pathak

Faculty Scholarship

Last term, the United States Supreme Court upheld the constitutionality of the Affordable Care Act in a landmark decision. It is a forceful reminder that America’s oldest question — how power should be shared between federal and state sovereigns — retains powerful political salience. Critics have reflexively attacked the decision as an assault on states’ rights, while supporters have celebrated the result. Regrettably, insufficient attention has been paid to how, in actuality, health care regulatory authority has been and will be divided between federal and state governments. In this Article, we fill that gap. To do so, we apply “federalism-in-fact,” …

Emergency Response: A Systemic Approach To Diaper Rash, Chest Pain, And Medicaid In The Ed, Sallie Thieme Sanford Sanfords@Uw.Edu

Articles

In an effort to rein in health care costs, states have focused on non-emergent use of the Emergency Department (ED) by people with Medicaid coverage, although this is an issue that cuts across payor groups. Particularly in light of the Affordable Care Act insurance expansions, I argue for a system-based approach that views ER overutilization as less a reflection of poor judgment on the part of patients and more a consequence of poor access to primary care and poor systems for managing the complex circumstances of high utilizers. I describe a state program of seven “best practices,” and argue that …

With Liberty And Access For Some: The Aca's Disconnectfor Women's Health, Nicole Huberfeld

Faculty Scholarship

The ACA denies to women the "basic security" of providing insurance for a procedure that statistics show one in three women will need during their reproductive lifetime. On one hand, the access-enhancing elements of the ACA are likely to help women, who earn lower wages, need more medical care, and live longer than men, to gain access to preventive and regular healthcare and to keep the insurance that they have. On the other hand, poor women and women of color will lose ground in access to abortion, because the ACA prevents insurance payment for abortions through both public and private …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Obamacare Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans – an objective that previous U.S. presidents had sought and failed to achieve for a century. This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House.

To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid – a joint federal-state health-insurance program for …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Law Faculty Scholarly Articles

Until the 2011 Term, no Supreme Court decision since the New Deal had struck down an act of Congress as exceeding the federal spending power. The question of unconstitutionally coercive conditions was also novel. Indeed, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power until the Court decided National Federation of Independent Business v. Sebelius (NFIB) on June 28, 2012. This Article proceeds as follows: Part I discusses the Affordable Care Act's Medicaid expansion in the context of the history and purpose of the Medicaid Act, paying particular attention to facts …

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld

Law Faculty Scholarly Articles

This Article will explore the power struggle that Medicaid invites and its potential elevation due to the pressures that will follow the Patient Protection and Affordable Care Act’s (ACA) expansion. Part I of this Article will describe the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This Part also will highlight the deceptive stability that has taken root in the lower federal courts by describing the recent state attempts to end private enforcement actions. The first Part will conclude by briefly considering the nature of the federalism arguments that states are making. Part II …

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

Scholarly Works

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.

When it recognized an anticoercion limit for the ACA's Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court's new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

An Optimist's Take On The Decline Of Small-Employer Health Insurance, Allison K. Hoffman

All Faculty Scholarship

In their Article, Saving Small-Employer Health Insurance, Amy Monahan and Dan Schwarcz contend that the Patient Protection and Affordable Care Act (“ACA”) could be the death of small-group health insurance by incentivizing many small employers not to offer coverage. While their prediction that the ACA, after implemented, will destabilize the small-group insurance market may prove true, I argue why their prescription that it should be saved is flawed and why we may be better off without small group insurance.